(A) Use permit required.
(1) Generally. Except as otherwise provided in this section, no person shall use a village right-of-way for any improvements therein unless the consent of the village is first obtained, as evidenced by a use permit issued by the village pursuant to this subchapter. For purposes of this section, a person providing local exchange service or other local telecommunications services shall be considered to be using the village’s right-of-way if such person is the owner of the improvement or obtains the use of the improvement from another party under a lease, contract, interconnection or other similar arrangement.
(2) Exemptions. An exemption described in this section shall not apply until it has been documented and proven in written form by the person claiming it to the village’s satisfaction. A use permit is not required for any person that currently has a valid, effective and unexpired franchise from the village to use the village’s rights-of-way for improvements, and those persons who have continuously used and occupied village rights-of-way under a claim of entitlement based on an alleged grant of authority by the state predating the Michigan Constitution of 1909 and have provided universal services for many years and/or provided telecommunications services within the village pursuant to M.C.L.A. § 484.4 prior to the enactment of the Michigan Constitution of 1909, provided, however, that this exemption shall not be applicable if and immediately when a court of competent jurisdiction in any action in Michigan determines that the village is not required to exempt a person purportedly granted rights in this section.
(3) Violations. Failure to obtain a use permit under this section shall constitute a violation of
this section and shall subject the violating person to the penalties provided for in this subchapter. A person who violates this section shall pay the required application and use permit fee, as well as any additional charge established by resolution of the Village Council for that period of time that the person did not have a valid permit pursuant to this subchapter.
(B) Permit application procedures and fees.
(1) A person that wants to use a village right-of-way shall apply to the village for a use permit pursuant to this section and § 96.031. Every applicant must complete and file six copies of an application with the Village Clerk’s office in a form designated or provided by the Village Clerk.
(2) At the time of filing an application, the applicant must pay to the Village Clerk a nonrefundable application fee in an amount established by resolution of the Village Council. In addition, after the application has been reviewed by the village, the applicant shall pay an application review and processing fee in an amount necessary to reimburse the village for the costs in reviewing, processing, investigating, granting or denying and issuing the permit, as estimated by the Village Clerk based on rates and factors established by resolution of the Village Council. If review and processing costs exceed the Village Clerk’s estimate, they shall be paid by the applicant prior to permit issuance.
(C) Use permit fee. In addition to the nonrefundable application fee, application review and processing fees and any other applicable fees for permits or approvals required by other village ordinances and applicable laws for each year the use permit is in effect, the permittee shall pay an annual use permit fee to the village in an amount established by the Village Council. The annual use permit fee shall be paid prior to use permit issuance, and for each year thereafter, on or before the last village business day prior to January 1, the fee being payable in advance of the year it is for. The amount of the use permit fee shall be fair and reasonable, competitively neutral and nondiscriminatory and shall not exceed the fixed and variable costs to the village in connection with the permit and in maintaining the village’s rights-of-way used by the permittee. Upon the written request of the Village Clerk or applicant, the fees established by the Village Council resolutions shall be reviewed on a case-by-case basis for the purpose of determining whether the improvements of a permittee create any more or less impact upon the fixed and variable costs to the village. In making such determination, the Village Council shall take into consideration the following factors:
(1) The annual fixed and variable cost to the village in maintaining the right-of-way in, under or over which the permittee’s use occurs;
(2) The total amount of area that the permittee will be using and occupying in the village right-of-way, including but not limited to the length of right-of-way and the number and size of the improvements to be used;
(3) The frequency and unit cost of monitoring the rights-of-way on a regular basis to ensure that the use by permittee conforms with applicable law, ordinance and permit conditions and that such use has not created the need for public attention;
(4) The proportionate cost of maintaining and administering records, including computer records of right-of-way use, including administration to assist in the avoidance of conflicts in the use of the rights-of-way by other users and auditing of the extent of permittee’s use;
(5) Any unique aspects of permittee’s use or improvements that are likely to affect the cost to the village of permittee’s use of the rights-of-way.
(D) Use permit term and renewal. A use permit shall be issued for a term of ten years, with the first year ending on December 31 of the year the use permit is issued. The permittee may apply to the village for ten-year renewals of its use permit, which renewal periods would run from January 1 to December 31 of each ten year term. Unless earlier terminated by the permittee or the village, a permittee must file an application for renewal of its use permit with the Village Clerk not less than 120 days before the expiration of the current term and pay a renewal application fee to the Village Clerk in an amount established by resolution of the Village Council. The Village Clerk shall review all renewal applications and, not later than December 1 of each year, shall approve or deny all renewal applications. The village shall have the right to impose additional reasonable conditions on those use permit renewals. Although permits are to be granted for a ten-year term, the Village Clerk may also conduct an interim review at the end of the third and sixth years of a permit. The review shall first determine whether the fee schedule then in effect should be revised. If the Clerk determines that it should be revised, a resolution shall be presented to the Village Council for a new fee which, upon Village Council approval, shall be established and shall be effective for the balance of the permit term. The second purpose of the review shall be to require the permittee to demonstrate all of the following:
(1) The permittee has complied with all use permit terms and conditions;
(2) The permittee has timely paid to the village the annual use permit fees, all personal and real property taxes and any other obligations due and payable to the village;
(3) If at such review the permittee fails to make the demonstrations specified above, the Village Clerk may impose further conditions upon the continuation of the use permit or, if the failure represents a material breach of the terms and intent of this section, may initiate revocation proceedings under § 96.033 for the Village Council to terminate a use permit.
(E) Use permit terms and conditions. In addition to any individual conditions imposed by the Village Clerk on a permit as provided in § 96.031, all disruption permits shall include and require compliance with all terms and conditions set forth in § 96.032.
(F) Revocation of permit and stop use orders. All use permits shall be subject to stop use orders and/or revocation under the standards and procedures contained in § 96.033.
(Ord. 169, passed 11-27-00)